Defame and fortune

Mostly I complain about the hopelessly broken form of our defamation laws but, you know, even a dead clock is right twice a day. So it is with Sarah Hanson-Young’s defamation victory over former senator David Leyonhjelm.

Should politicians sue each other for slander? This question was at the heart of Leyonhjelm’s defence.

The case arose from a parliamentary contretemps in June last year. During a Senate debate, Senator Hanson-Young made an interjection which the microphones did not pick up, but everyone heard. According to Leyonhjelm, she said something like “All men are rapists”.

Shortly after this, Leyonhjelm also interjected, and there’s no doubt about what he said: “You should stop shagging men, Sarah.”  Hanson-Young approached him in person to ask if she had heard him correctly; he confirmed she had. She called him a creep, and he told her to fuck off.

That wasn’t all. Leyonhjelm then put out a media release, alleging that Hanson-Young had said “something along the lines of all men being rapists” and reporting their interaction. He also said that, while he wouldn’t be apologising for his language, he would rephrase it: “I strongly urge [her] to continue shagging men as she pleases.”

In the predictable media furore, Leyonhjelm continued to double down, repeating his claims in several interviews. He already knew he had a problem, because in fact Hanson-Young had never said that all men are rapists or anything like it.

And yet he just kept repeating his lines and claiming offence at Hanson-Young’s supposed misandry.

To the Federal Court, where Justice Richard White downed Leyonhjelm on all points and awarded Hanson-Young $120,000 in damages. Although he had approached the case with a shopping list of defences, in the end Leyonhjelm ran only two: that what he’d said about Hanson-Young was true; or, if it wasn’t, he had qualified privilege to say it.

The alleged defamatory “sting” in Leyonhjelm’s words was that Hanson-Young was both a misandrist and a hypocrite, the latter because she claims all men are rapists while still having sex with them. While he had also slut-shamed her, she chose not to make that part of her case.

Because, as the judge found, Hanson-Young had not said or implied that all men are rapists, it was impossible for Leyonhjelm to justify his slander at all. Qualified privilege was never going to work either, both because there wasn’t anyone on earth who had a legitimate need (or desire) to hear his bullshit, and because he was clearly being malicious.

It came down to an argument about whether horrible things that politicians say about each other can be defamatory at all. In this regard, Leyonhjelm was also keen to have a go at Hanson-Young’s “previous poor reputation”. Defamation means to cause reasonable people to think less of the targeted person; if they’re already held in low regard, they can’t be defamed.

Court proceedings provide a privileged forum for slander in themselves, and Leyonhjelm grabbed the opportunity with both hands. The judge wasn’t impressed, finding that Hanson-Young was eminently defamable.

On the question of the “rough and tumble” of politics, it can be accepted that its practitioners need an unusually tough skin. It’s also a good thing they can’t sue each other for what they say in parliament, because that’d clog the courts up more than the tsunami of Facebook defamation cases. However, that protection doesn’t apply outside, a distinction that Leyonhjelm may not have quite grasped.

In one sense, this was a trivial case. Nobody cares what David Leyonhjelm thinks. Standing for the upper house in this year’s NSW state election, he managed 2366 first-preference votes, less than half a percent of the total. His political brand recognition these days is somewhere south of Ricky Muir’s.

That being the case, was the gross personal assault he launched on Hanson-Young capable, in reality, of harming her reputation? It’s an open question, but I’d say yes. However, not on the basis that she claimed and the judge found. Her case was that Leyonhjelm had called her a hypocrite and a man-hater. And, sure, he agreed he’d said that. But nobody was ever going to buy it, either as true or as a genuine belief on his part.

No, the truth is that Leyonhjelm called Hanson-Young a slut. She, for tactical reasons, didn’t pursue that. It hovered around the perimeter of the case instead.

For what it’s worth, I think Leyonhjelm did defame Hanson-Young and should have been made to pay.  So — right result, wrong reasons. 

Funny how the law works out sometimes.